Race and the Roberts Court: The Battle Over the Legacy of Brown

John Payton, a partner at the D.C. law firm WilmerHale, will be the featured ACS speaker next Monday, Nov. 12 from 1-2 p.m. in Room 124. Mr. Payton was lead counsel for the University of Michigan affirmative action cases Gratz and Grutter.

Mr. Payton’s talk is titled, “Race and the Roberts Court: The Battle Over the Legacy of Brown.”

Mr. Payton will be discussing the Supreme Court’s ruling last term, Parents Involved in Community Schools v. Seattle Community School District No. 1, which dealt with the voluntary desegregation of public schools in Seattle and Louisville, Kentucky. In a 5-4 decision, the Court held that the desegregation plans were not narrowly tailored to achieve the intended goal of diversity in public schools, with “conservatives” Roberts, Scalia, Alito, Thomas, and Kennedy prevailing over “liberals,” Souter, Stevens, Ginsberg, and Breyer.

Only four years ago, the Rehnquist Court heard the famous University of Michigan cases Gratz and Grutter, and upheld the consideration of race in university admissions, subject to certain limitations (such as consideration of the “whole student” and not only of the student’s race). In Grutter, Justice O’Connor, writing for the majority, stated that the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”

The voluntary desegregation plans in Seattle and Louisville attempted to further this “compelling interest” by permitting students to select their school of choice, but then, if some schools were over-selected, using a series of tiebreakers to determine which students would be admitted. One of the most important tiebreakers was race—a factor intended to promote diversity in the schools. This system sometimes had the effect of offering a route for black students to gain entry into certain public high schools and making it more difficult for white students to transfer out of schools with predominant minority populations. However, the racial tiebreaker was only used when a given school’s minority population fell outside a predetermined range. In Louisville, the range was 15%-50%.

Chief Justice John Roberts issued the majority opinion in Parents, but as in so many cases last term, Justice Anthony Kennedy’s thoughts determined the court’s holding. Kennedy wisely refrained from joining the conservative bloc’s portions of the opinion that would have made the desegregation plans unconstitutional. Still, Kennedy joined the parts of the opinion that uprooted the plans, leaving state boards of education across the country to guess what they should do next.

Justice Breyer wrote a spirited, 77-page dissent which included this poignant line: “It is not often in the law that so few have so quickly changed so much.” Breyer also gave an emotional 20-minute speech directly from the bench, which alerted many in the media to the radical shift the conservatives had made in this case. “This is a decision that the court and the nation will come to regret,” Breyer said.

Justice Stevens filed an additional dissent, in which he posited that no member of the Supreme Court he joined in 1975 would have agreed with the decision in Parents.

In his opinion, Roberts quoted a lower court judge with this infamous line: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” suggesting, naively, that if we simply ignore race, segregation will just go away on its own. Justice Thomas, in a concurring opinion, wrote that “Justice is colorblind.”

With this kind of logic, it’s no wonder that Breyer said Parents Involved threatens the Court’s 1954 ruling against school segregation in Brown.

Published in: on November 7, 2007 at 5:20 pm Comments (2)

2 Comments

  1. On November 24, 2007 at 10:41 am Spencer Said:

    I’m still missing how the desegregation plans in Louisville or Seattle were “voluntary.” They were not voluntary for parents or students, but forced those students zoned for one school to go to a different school so the student body would learn better. What is it, then about white students or black students or hispanic students or Asian students cognitively that helps those students learn better when they are forced to go to a school so as to create some sort of artificial diversity? Indeed, even more troubling about those plans was that the plans implied that it is wrong for individuals to choose to live in neighborhoods with other like people, e.g., those of one race or nationality often choose to live in neighborhoods with those of the same race or nationality.

    One critical distinction between the Seattle and Louisville cases and the U of Mich cases that liberals fail to discuss is that public secondary education is mandated; college education is voluntary. This suggests that college institutions have more leeway in choosing the composition of its student body than public secondary schools. Diversity is appropriate for college institutions in admissions, but not for public secondary schools. That is a logical distinction to me.

  2. On November 24, 2007 at 10:19 pm EJ Said:

    I believe Spencer’s comment misses the mark in three fundamental areas. First, the name “voluntary desegregation” was not intended to describe the voluntariness of the plan as to the parents or children—rather it was to connote a desegregation plan that was entered into voluntarily by the school district, as opposed to a plan imposed by the courts. Regardless of this distinction, however, it is still incorrect to state that the plans “forced … students zoned for one school to go to a different school ….” In fact, the plans did not require any students to attend any particular school. Rather, parents were permitted to submit a list of schools which they wished their child to attend in order of preference. The school district would then try to give every parent their first choice. However, if some schools became over-subscribed, a series of tiebreakers was used to select which students would be given their first choice versus those that would be given their second or third. (Race was only one of many tiebreakers used. For example, having an older sibling who attended the school was overriding.) If parents missed out on their first choice in any given year, they were always permitted to re-submit the following year. Although most parents probably made their choices based on academics or similar factors, if a parent’s dominant concern was that their child attend a mostly-white or mostly-black school, they were certainly entitled to express that preference. Really, this system provided parents more voluntary choice in their child’s school than most neighborhood-schooling systems.

    Second, the value of diverse classrooms extends beyond whether students simply “learn better” when sitting alongside students of other races. During his talk, John Payton stressed the importance of individuals of different races seeing each other as peers. Mr. Payton stated that the ability of individuals of all races to see one other as equals who are worthy of recognition and consideration is absolutely critical to our ability as a nation to work toward the goal of democracy. When black and white and Asian and Hispanic children work together with mutual respect beginning in the first grade, it makes it much easier for them to do so ten, twenty, or thirty years in the future—when they are no longer first-graders, but rather businesspeople and politicians. Conversely, a system which separates individuals by race promotes ignorance and intolerance of “different” people and endangers our ability to work together as a cohesive democratic citizenry.

    Finally, it is true that there is a distinction between primary school and higher education. But the distinction is different than the one drawn by Spencer. The distinction is not between voluntariness and involuntariness, because although primary school-aged children are required to go to a school, they are not involuntarily plunked into a school whose racial demographic they or their parents find objectionable. They may make the voluntary choice to go to a different school, list their schools of preference differently, or even choose home schooling. Rather, the distinction between primary school and higher education is that when one student is admitted to an institution of higher learning, another is not. As Mr. Payton explained, this creates a zero-sum game and increases the stakes of affirmative action—if the white student was admitted, the black student was not, and vice versa. This may effectively deny the excluded student a higher education. However, this zero-sum game is eliminated when you discuss primary schools. If one student is admitted to a particular elementary school, the other child is not denied that opportunity. All of the kindergarteners will be “admitted” to the first grade regardless. This suggests that admissions predicated in part on race should be less provoking when applied to primary school than when applied to higher education, as a system promoting diversity in elementary schools does not carry with it even the potential of refusing a child the opportunity of an education.