School Desegregation After Parents v. Seattle District

^{Background: Supreme Court Central}

Photo: © 2007 Teresa Sheehan.

Before we start talking about the ruling that the U.S. Supreme Court handed down this morning, let's acknowledge the big picture.

In 1896, the U.S. Supreme Court ruled in Plessy v. Ferguson that the government was obligated to provide "separate but equal" public education facilities for non-white students.

Today, over a century later, even this meager standard has not been realized. I live in Jackson, Mississippi. Just outside of Jackson is the suburb of Madison, which is 93% white. This is its website. The Madison Public School District has the highest high school graduation rate in Mississippi.

Also in Madison County is the city of Canton, which is 85% black. I would provide a link to the Canton Public School District, but its web domain is owned by a domain parker, so I'll settle for pointing out that despite being adjacent to the Madison District, the Canton Public School District has the lowest graduation rate in the state. Here is what the Madison District's web site has to say about its neighboring school district. I have bolded several key phrases for emphasis, and submit them without comment:

Also located in Madison County, within the city of Canton, is the Canton Public School District. There are six schools in the district. The mission of the Canton Public School District, with full participation of parents and the total community, is to enable all students to become analytical thinkers, self-directed lifelong learners and effective communicators who are prepared to continue their education and/or to enter the workplace, and that each participates in society as a responsible citizen.

Here is what Madison says about its own district. Key words and phrases are, again, bolded:

From kindergarten to graduation day, the faculty and administrators of Madison County Schools are committed to developing responsible, productive citizens equipped to contribute to an ever-changing global society. Teachers in the district are constantly evaluating what they do, why they do it and ways to improve. Combined with a comprehensive building program, an excellent curriculum, and top ranking test scores, the Madison County School District is one of the best in the state.

Even if you knew nothing else about these two districts, you would be able to tell from the way these descriptions are written that the Madison District serves a group of affluent students who "contribute" to "global society," while Canton District students, bless their hearts, are only expected to become "effective communicators" who can "enter the workplace." One group is expected to consist of fire-forged agents of global change; the other is supposed to settle for speaking well, holding down a job, and staying out of prison, or what one might refer to as the "clean, bright, and articulate" standard.

I could cite national statistics to back up my case that students in predominantly black schools are disproportionately likely to get a bad education. I would not be the first to point this out. I am reminded of NAACP Chairman Julian Bond's remark that "violence is black children going to school for 12 years and receiving 6 years' worth of education." But it isn't necessary to make the case that schools with predominantly black students tend to provide a lower-quality education and fewer opportunities, because that's common knowledge.

So "separate but equal" is not a reality, and it has never been a reality.

Let's move ahead six decades or so to Brown v. Board of Education (1954). In a 9-0 ruling, the U.S. Supreme Court explained why "separate but equal" didn't work. Again, I've bolded text for emphasis:

We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

More than five decades after Brown, we still have a racially segregated public school system. More than 70% of African-American students are educated in predominantly black schools, a la Canton.

And because they have been educated separately, they have by and large been educated unequally. There is no other reasonable conclusion that can be drawn from the logic of Brown v. Board of Education. It is a series of clear logical propositions:

1. Racially segregated schools cannot provide equal educational opportunities.
2. Our school system is racially segregated.
3. Therefore, our school system does not provide equal educational opportunities.

QED. We have failed miserably according to both the Plessy and Brown standards. As a culture, we are over 110 years behind the Supreme Court on equal educational access. Ours is a white supremacist society in denial.

This is more than likely the most significant reason why African Americans are three times as likely as whites to live in poverty, why African Americans die an average of seven years earlier than whites, why African Americans are less likely than whites to graduate from college, why African Americans are more likely than whites to end up in prison.

With that fact taken into account, the U.S. Supreme Court's ruling this morning in Parents Involved in Community Schools v. Seattle School District No. 1 seems almost inconsequential. And the actual 5-4 ruling itself almost is; as Chief Justice Roberts wrote for the majority in the ruling summary:

Although remedying the effects of past intentional discrimination is a compelling interest [justifying racial classification] under the strict scrutiny test ... that interest is not involved here because the Seattle schools were never segregated by law nor subject to court-ordered desegregation, and the desegregation decree to which the Jefferson County schools were previously subject has been dissolved ...

Despite the districts' assertion that they employed individual racial classifications in a way necessary to achieve their stated ends, the minimal effect these classifications have on student assignments suggests that other means would be effective. Seattle's racial tie-breaker results, in the end, only in shifting a small number of students between schools. Similarly, Jefferson County admits that its use of racial classification has had a minimal effect, and claims only that its guidelines provide a firm definition of the goal of racially integrated schools ... [But] [c]lassifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of this Court's precedents and the Nation's history of using race in public schools, and requires more than an amorphous end to justify it.

What the ruling says about public schools in Washington is entirely true, by the way. The State of Washington had already banned (official) segregation prior to Brown v. Board of Education and was not subject to the remedial efforts of the Court in Brown.

But this is not, strictly speaking, a 5-4 ruling. It is a 4-1-4 ruling; Chief Justice Roberts, joined by Justices Alito, Kennedy, Scalia, and Thomas, argues that a strict scrutiny standard must be met by any plan that involves racial classification of any kind, even if the purpose of the small-scale racial classification is to correct for large-scale racial discrimination. The strict scrutiny standard holds that a law or policy must be "narrowly tailored" to serve a "compelling government interest." The five-justice majority held to this standard. But Justice Kennedy bowed out of the strong language of section IV, which argued, inter alia, that:

Before Brown, schoolchildren 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. For schools that have never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way "to achieve a system of determining admission to the public schools on a nonracial basis [as per Brown] is to stop assigning student on a racial basis. The way to stop discrimination on the basis is to stop discriminating on the basis of race.

I can see why Kennedy refused to back section IV, because it presents a revisionist history of school segregation in which all segregation was due to the direct intervention of government policies, and not to long-term institutional factors, and in which school segregation ceased to become a serious problem after Brown.

But does this ruling challenge Brown? Does it challenge busing? Does it challenge intentional school integration programs? Not necessarily. All it challenges, in the short term, is these two district programs. Questions that remain unanswered:

• In a district that was officially segregated prior to Brown, would policies otherwise identical to those of the two districts satisfy the Court's strict scrutiny test?
• In a district where integration policies had more widespread effect, would policies otherwise identical to those of the two districts satisfy the Court's strict scrutiny test?
• In a district where racial diversity was promoted on a multi-spectrum, non-binary demographic basis, would policies otherwise identical to those of the two district satisfy the Court's strict scrutiny test?

I will be writing more about this ruling over the coming weeks, but my initial sense of the ruling is that although the precedent it sets is narrow, the revisionist logic of the Court with respect to the causes of segregation could be indicative of future rulings. I am concerned, not because the case itself has immediate and lasting implications (because it does not), but because the Court may in the future apply the logic of the case in contexts in which it would have immediate and lasting implications. It seems clear that the four justices comprising the plurality have an extremely conservative philosophy with respect to the issue of racial integration and affirmative action, and the survival of affirmative action programs as we know them today may rest on the already burdened shoulders of Justice Kennedy.

This is a case, incidentally, where the presence of Chief Justice Roberts and Justice Alito may or may not have been definitive. Chief Justice Rehnquist would have unquestionably joined the plurality, because he was as conservative on race issues as it would have been possible for a modern-era justice to be; Justice Sandra Day O'Connor might have joined the four-justice dissent, or she might have joined Justice Kennedy in approving the specific outcome of the ruling but not necessarily all of the logic employed by justices in the plurality. Given Justice O'Connor's complex record on affirmative action, either outcome would have been possible.

In any case, this ruling's short-term implications should be understood as a potential threat, not an actualized threat. The vast majority of our country's affirmative action and school desegregation programs are safe, at least for the time being. But we need to ask ourselves: Why doesn't this Court acknowledge the reality of public school segregation? Why doesn't this Court acknowledge, as part of its grand sweeping argument about the nature of discrimination, that the government can't simply wash its hands of this reality by pretending that we live in a society whose public school system has already lived up to its Fourteenth Amendment responsibilities?

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• Racial Discrimination