A narrow crack in the schoolhouse door

Supreme Court’s school integration ruling is out of step with the needs of Louisville schools
We have come a long way since 1975, when a federal court mandated a school desegregation plan to dismantle the dual school system that was a product of de jure segregation. Louisville was a racially divided, tumultuous city in the midst of societal change. In 2000, when the consent decree was lifted, the federal court proclaimed that, “Jefferson County had eliminated the vestiges associated with the former policy of segregation and its pernicious effects.” Recognizing that racism is systemic and its underlying effects continue to operate today, Jefferson County Public Schools voluntarily continued to operate its school integration plan. The plan was based on choice, program offerings, attendance zones and other non-racial factors, with race one of many components used in the assignment process.

Last week, the Court rejected the political will of the community, the expertise of school administrators and teachers and a history of painful progress. This result is not surprising. Even before the ascendancy of the conservative bloc of the Roberts Court, the U. S. Supreme Court issued a series of ambivalent pronouncements about race: in Bakke (1978), a plurality opinion, the Court held that race could be used, as one of many factors, to pursue the compelling state interest of diversity, but that setting aside 16 seats out of 100 solely for African-Americans in a medical school class was unconstitutional.

It would take 25 years for the Court to “clarify” its holding in Bakke. In Grutter (2003), the Court reaffirmed the diversity principle, concluding that “a highly individualized, holistic review of each applicant’s file” with race as one of many factors was constitutional to maintain a critical mass of law students in the University of Michigan School of Law. In Gratz (2003), the University of Michigan’s undergrad admissions program was held unconstitutional because it relied on racial classifications in a “non-individualized, mechanical way,” allotting admission points based upon race.

In many ways, we are back where we started. Did we ever move forward? Chief Justice Roberts believes we have come far enough. Because there is nothing to remedy in the Louisville and Seattle school systems, both programs amount to pure racial balancing, which is unconstitutional. He concludes: “In design and operation, the plans are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate.” To Chief Justice Roberts, the school systems in Louisville and Seattle are akin to the unconstitutional point system in Gratz. This inverted reasoning, where privilege trumps the eradication of racially isolated school systems, undermines the legacy of Brown v. Board of Education.

We cannot comprehend the core meaning of Brown by equating state-sponsored racial oppression and stigmatization with voluntary efforts to maintain the dynamic pluralism that is the hallmark of our society. There is no moral equivalence between the caste-based exclusion that Brown dismantled and the inclusion that both the Louisville and Seattle voluntary school assignment programs embraced. In fact, both lower court decisions concluded that there was either no undue harm or a minimal burden to students who did not receive their preferred school choice because “a student has no constitutional right to attend a particular school.”

The emerging debate about “neighborhood schools” or diverse schools distracts us from the real issue: inclusion. Of course, everyone would like to walk across the street to the neighborhood school, but this facile proposition ignores the existence of segregated housing patterns that are glaring vestiges of state-sponsored dual school systems. In Bakke, Justice Blackmun wrote: “In order to get beyond racism, we must first take account of race. There is no other way. … We cannot — we dare not — let the Equal Protection Clause perpetrate racial supremacy.” He was right.

It is a sad irony, as we strain to find some ray of hope for the future in Chief Justice Roberts’ ahistorical plurality opinion, that we must turn to Justice Kennedy for solace. He has not been a proponent of race-conscious remedial approaches in the past, but he nevertheless recognizes that the Roberts Court’s pure colorblind constitutionalism goes too far: “The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.” He writes “n the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.”

 Despite claims to the contrary, the plaintiff (petitioner) did not “win” here. Justice Kennedy’s concurrence supplies the fifth vote, but he does not endorse the pure colorblind approach articulated by the Chief Justice. Race can be used within clearly defined limits. The colorblind constitutionalism advanced by the Roberts Court leads us down the wrong path; it offers an illusory level of comfort that racism no longer exists and everyone has the same opportunities. We must not go back; let’s open the schoolhouse door. Unfortunately, for many students this may be the only truly integrated space in American society.

Cedric Merlin Powell is a Professor of Law at the University of Louisville Brandeis School of Law, where he teaches Constitutional Law, Evidence, Race and the Law, Criminal Law, and Professional Responsibility. He researches and writes on affirmative action, the First Amendment, and the Fourteenth Amendment. Contact the writer at [email protected]