Published online 28 June 2007.
I know there are a lot of diaries on the Supreme Court’s decisions today — but one particular decision of theirs, Parents v. Seattle, deserves a very close reading, as the precedent it appears to set may affect the quality of public education our children will obtain. What I will show in this initial reading is that today’s decision is about permitting de facto segregation to continue. Part 1 will be a close reading of the syllabus; part 2 (forthcoming) will discuss the realities of de facto segregation in the context of Parents v. Seattle.
First of all, I wish to light a candle in honor of my ancestors in this joint analysis.
Peter Daou for noting Hillary Clinton’s response
Bcgntn for suggesting the role of school distance in the Court’s ruling
Adam B for noting Anthony Kennedy’s role in the Court’s decisions.
AllDemsOnBoard for recording public outrage.
Adam B, once again, for pointing to the segregationist nature of this ruling.
The Maven, for dissecting this ruling in another way.
(crossposted in Educator Roundtable)
Now for the interpretation part. Remember, this is only Part 1: more journals are on the way. As I read the decision, I can say this much:
What the Court wants to permit, I think, in dealing with Parents v. Seattle School District No. 1 et al. in the way it did, is de facto public school segregation by race. But the Court does not appear willing at this point to say this outright. So, instead, the court has set up a series of “tripwires” to help remedies to de facto school segregation (absent any law mandating segregation itself) fail in the courts. So perhaps the Court has not said so, outright; but its intention is to get rid of legal challenges to de facto segregation without frightening anyone into thinking that it has abandoned precedent.
Here’s how I think it works:
- First off, the majority opinion argues that “racial classifications” are to be defined as an “extreme means” of undoing segregation. Here’s how it’s worded exactly, from the syllabus:
- The school districts have not carried their heavy burden of showing that the interest they seek to achieve justifies the extreme means they have chosen — discriminating among individual students based on race by relying upon racial classifications in making school assignments.
Now, this may in fact look fair; but it serves the Court as a flexible, all-purpose legal justification. Here’s how it works: we see de facto segregation; we seek a remedy; but, woops, there’s the tripwire — in order to determine in the first instance that there is in fact segregation, we must “rely upon racial classifications.” Now, how are districts going to make any remedial system of school assignments unless they can continue to “rely upon racial classifications” in doing so?
There is, however, a “strict scrutiny” that is to be applied by the courts to District attempts at desegregation. Here’s how it goes, in the Court’s opinion:
In the present cases, by contrast, race is not considered as part of a broader effort to achieve “exposure to widely diverse people, cultures, ideas, and viewpoints,” id., at 330; race, for some students, is determinative standing alone. The districts argue that other factors, such as student preferences, affect assignment decisions under their plans, but under each plan when race comes into play, it is decisive by itself.
This is to distinguish this Parents v. Seattle case from a Grutter case that supposedly passes this “strict scrutiny” criterion the Court has generously permitted, as follows:
In Grutter, the number of minority studnets the school sought to admit was an undefined “meaningful number” necessary to achieve a genuinely diverse student body, 539 US at 316, 335-336, and the Court concluded that the law school did not count back from its applicant pool to arrive at that number, id., at 335-336. Here, in contrast, the schools worked backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits. This is a fatal flaw in this court’s existing precedent. See, e.g. Freeman, supra, at 494. Accepting racial balancing as a compelling state interest would justify imposing racial proportionality throughout American society, contrary to the Court’s repeated admonitions that this is unconstitutional.
Now, Grutter v. Bollinger refers to a case concerning the University of Michigan Law School, which can pick and choose its applicants because they are, that’s right, adults. Public school districts, on the other hand, can do no such thing, as their “clientele” are children who are required by truancy laws to attend school. How the public schools are to meet the criteria required by Roberts, and to avoid “count(ing) backward from its applicant pool” when, clearly, they have no control over the size or racial makeup of that applicant pool, is beyond me.
And it’s important to scrutinize the Court’s opinion of Brown v. Board of Education, so we can understand how it views precedent today:
In Brown v. Board of Education, 347 US 483, the Court held that segregation deprived black children of equal educational opportunities regardless of whether school facilities and other tangible factors were equal, because the classification and separation themselves denoted inferiority.
Now, some of this wording is taken directly from Brown; but what Roberts seeks to accomplish here is to make Brown about “classification” rather than, as the original decision had it, about a remedy for students who were being “denied admission to schools attended by white children under laws requiring or permitting segregation according to race.”
If Jonathan Kozol is right, our failure to desegregate the schools is so widespread that they are just as segregated as they were before Brown. Moreover, the conditions of these desegregated schools are by no means equal at all. So here are some pointed questions as regards the relationship between “law” and “segregation.” Don’t the laws require minors to attend schools? Aren’t the default schools for the truancy laws public schools? And don’t the districts which establish conformity with these laws segregating students by race, at least according to the data-set which writers such as Kozol have established?
The Court’s argument continues in this vein:
The districts here invoke the ultimate goal of those who filed Brown and subsequent cases to support their argument, but the argument of the plaintiff in Brown was that the Equal Protection Clause “prevents states from according differential treatment to American children on the basis of their color or race,” and that view prevailed — this court ruled in its remedial opinion that Brown required school districts “to achieve a system of determining admission to the public schools on a nonracial basis.” Brown v. Board of Education, 349 US 294, 300-301 (emphasis added). pp. 28-41.
Now, the word “nonracial” is not to be found in the original text of Brown, but (as litigatormom points out in the comments section below) in the remedial phase of Brown, which receives a different text altogether. “Nonracial,” here, has been taken out of the context of a remedy for a discriminatory school system, and applied to one in which no actual racial discrimination is taking place. This appears to be a conscious attempt to transform the government’s role under Brown, from a seeker of remedies for segregation, to a “colorblind” entity, one that can remedy no evil because it can see no evil. De jure segregation, then, is out, because it implicates the government in the evils of segregation; de facto segregation is OK for the court, because in such cases the government has washed its hands and can turn an appropriately blind eye. At least this is how I view it so far.
Part 2, about context, will come to a theater near you, soon!