Perspectives: Abandoning Brown and ‘[Race]ing’ Backwards on K-12 Education

The recent, well-publicized U.S. Supreme Court desegregation cases make it much tougher for school districts to achieve racial diversity and eliminate racially isolated public school systems. In addressing the use of race by Seattle and Louisville school districts in student assignments, Chief Justice John Roberts declared, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

In the ultimate incongruity, Roberts equated these school assignment cases designed to achieve racial diversity to the separate-but-unequal doctrine that existed prior to the Brown v. Board of Education decision. In the Court’s official opinion, Roberts said that:

“Before Brown, school children were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again — even for very different reasons.”

In a concurring opinion, Justice Clarence Thomas proclaimed his belief in a color-blind constitution and outrageously equated Justice Stephen Breyer’s dissenting opinion to the arguments of segregationists in the pre-Brown era.

In these two cases, each school district used race in a limited way to assign students to oversubscribed schools. Despite acknowledging that fewer than 52 students were adversely affected by Seattle’s race-conscious policy and that 95 percent of Louisville’s students attend the school of their choice, Roberts wrote that these programs were invalid for two reasons.

First, Roberts held that no remedial justification existed for either of the school plans because, in his view, neither school district currently discriminated against children of color. According to Roberts, the Seattle public schools were never subject to a court-ordered desegregation decree. Moreover, Roberts noted that in 2000 the Louisville system was found to have “eliminated the vestiges associated with the former policy of segregation …”

Second, Roberts found that race could only be used as one of several diversity factors. The Louisville and Seattle disticts used race as the sole deciding factor. Moreover, without explanation, Roberts declared that these school assignment cases were not governed by Grutter, the 2003 case that upheld Michigan Law School’s affirmative action plans. Presumably, Roberts would limit Grutter’s application to the realm of higher education. He went on to find that the programs were not narrowly tailored because the plans were directed at illegitimate racial balancing, not pedagogic concerns.

The opinions of both Roberts and Thomas would give local school boards virtually no power to achieve racial equity. Their opinions represent the conservatives’ abandonment of the integration dream. As New York Times columnist David Brooks said in a recent op-ed: “maybe integration is not in the cards. Maybe the world will be as it’s always been, a collection of insular compartments whose fractious tendencies are only kept in check by constant maintenance.” This approach is flawed because it leaves few avenues for local and state governments to legally equalize educational opportunities or eliminate the racial isolation of K-12 students. In essence, such a plan would abandon Brown’s promise of integrated schools.

Fortunately, the opinions of Roberts and Thomas represented only a plurality of the Court. Justice Anthony Kennedy supplied the key fifth vote that overturned the school assignment programs, saying they failed to satisfactorily explain the reasons for the assignment programs. But he joined the dissenting Justices in permitting the use of race in school assignment cases. Kennedy’s opinion provides some clarity and does not totally turn back the clock. I predict that Kennedy’s opinion will become the most influential opinion in this area of the law. In his own published opinion, Kennedy explained his disagreement with Roberts as such:

“The plurality opinion is 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 that the plurality opinion suggests the Constitution mandates that state and local authorities must accept the status quo of racial isolation in schools, it is, in my view profoundly mistaken.”

Kennedy gave some suggestions on how school districts can constitutionally use race-conscious measures to achieve diversity: (1) strategic site selection of new schools; (2) drawing attendance zones taking into account the demographics of neighborhoods; (3) targeted recruitment of students and faculty; and (4) tracking enrollments, performance and other statistics by race. If these general race-neutral approaches fail, Kennedy suggests that a nuanced individual evaluation of school needs and student characteristics including race as a component might also legitimate some school assignment plans. By leaving this door open for race-conscious means, Kennedy acknowledged that “this nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children.”

Despite Kennedy “saving” the day for race conscious K-12 programs, the totality of the opinion is monumental. It upsets settled expectations of school districts across the country. It is also likely to dissuade school districts from pursuing race-conscious policies. And unfortunately, it is likely to cause the further resegregation of our K-12 school systems.

–Leonard M. Baynes is a professor of law and director of The Ronald H. Brown Center for Civil Rights and Economic Development at St. John’s University School of Law.

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