Connecting the dots: Grutter, school desegregation, and federalism.

• Author: Parker, Wendy

TABLE OF CONTENTS INTRODUCTION I. GRUTTER AND DEFERENCE II. SCHOOL DESEGREGATION AND LOCAL CONTROL A. Brown II B. Title VI C. Milliken I, Milliken II, and Jenkins II D. Unitary Status E. Summary and Implications of Local Control III. DEFERENCE AND LOCAL CONTROL IV. FEDERALISM LESSONS A. Local Control and Federalism B. Desegregaation's Lessons for Affirmative Action 1. Flexibility 2. Varying Rights 3. A Better Way? CONCLUSION INTRODUCTION

Dissenting in the University of Michigan Law School affirmative action case, Grutter v. Bollinger, (1) Chief Justice Rehnquist twice described the approach of the majority as "unprecedented," (2) while Justice Kennedy declared it "antithetical to strict scrutiny." (3) Justice Thomas followed suit, also labeling the Court's analysis "antithetical to strict scrutiny" and twice calling it "unprecedented." (4) But the idea judged as dangerous and different--the idea of affording school administrators a degree of "deference" in judging their race-conscious activity (5)--is surprisingly as old as Brown v. Board of Education II. (6)

The 1955 Brown II case is well-known for requiring schools to desegregate only "with all deliberate speed," rather than immediately. (7) Most examining Brown II and its aftermath have debated the utility and justification for the judiciary's allowance of remedial delay. (8) Another important concept, however, emerges from Brown II, one almost completely overshadowed by the debate over timing. This is the idea of promoting "local control" in school desegregation, and concerns the role afforded to the defendants, by the judiciary, in ending de jure segregation. That aspect of Brown II makes Grutter's analysis less novel than some members of the Court have characterized it--and reveals that federalism and judicial competency partially justify Grutter's idea of deference.

This Article proceeds in four parts. Part I analyzes Grutter's approach of deferring to education officials defending their affirmative action policies. In upholding the constitutionality of the University of Michigan Law School's race-conscious admissions program, the Court finally laid to rest, at least temporarily, the idea that strict scrutiny is always fatal in fact. (9) The question now is whether Grutter's strict scrutiny is true strict scrutiny because the majority was highly deferential to the defendants. That is, in holding that diversity could be a compelling governmental interest, the majority took the school officials at their word when the school officials said they needed racial diversity for educational reasons and, in holding that the program was narrowly tailored, the majority gave the defendants the benefit of the doubt in the operation of the racial preferences. (10) As a result, educators can classify students according to their race in admissions, and educators are given some degree of deference in making and implementing that decision, albeit within critical limitations. (11) The dissenting Justices labeled the majority's approach not only as novel, but wrong. (12)

Part II turns to school desegregation to consider whether the role of deference in Grutter is new. The comparison of affirmative action to school desegregation might strike some as odd. Most scholars considering both have limited their discussion to whether affirmative action is consistent or inconsistent with the Brown v. Board of Education I prohibition of assigning students according to their race (i.e., whether Brown I reflects an anticlassification or antisubordination principle). (13) There is more to be said, however, because affirmative action and school desegregation cases are fundamentally quite similar. Both are Equal Protection Clause challenges to the racial activities of public schools that can result in federal court participation in local and state educational policy. (14)

With these similarities in mind, Part II explores the concept of "local control" in school desegregation as a potential precursor to Grutter's use of deference. (15) This history reveals that starting with Brown II, the Supreme Court has hesitated in involving itself too closely in school administration and has instead promoted the idea of state and local control over the desegregation process. (16) To be sure, the common perception of school desegregation is that of the district court or magistrate judge moving into the school superintendent's office. (17) This perception, however, is based on both a brief time in history and the influence of some unique, high profile judges. (18) The past and present reveal a federal judiciary that generally, although not always, defers to public school officials to define the nature of the right to be free from de jure segregation by promoting the concept of local control over schools undergoing desegregation. (19)

Part III compares the local control in school desegregation with Grutter's deference in affirmative action and finds remarkable similarities. Both reveal the judiciary's reluctance to involve itself too closely in school operation. (20) As a result, both allow school officials to regard race without a traditional strict scrutiny analysis, and both promote local and state control over schools at the expense of the power of the federal judiciary. (21) Thus, Part III argues that it is wrong to characterize the Grutter Court's approach to deference as new. (22)

In Part IV, this Article again turns to school desegregation, this time as a vehicle to evaluate the dissents' normative arguments that the Grutter Court erred in interjecting deference into Equal Protection jurisprudence. Part IV first argues that one of the Court's favorite subjects of late--federalism--strongly justifies the role of local control in school desegregation. Throughout its almost fifty-year history, school desegregation appears to be part of what Professor Richard H. Fallon has deemed the "quiet fronts" (23) of federalism--areas in which the Supreme Court can, and in some instances has, promoted federalism, but areas outside of those areas typically associated with the Court's recent federalism "revival." (24) One rarely thinks of school desegregation as furthering federalism because of its strong association with rejecting a state's right to choose a school system that segregates. (25) Further, the underlying right at issue in school desegregation, the right of students to equal protection of the law, is, at its core, a prohibition aimed at states. (26) Similarly, academic literature largely has treated federalism and the Equal Protection Clause separately. (27) Yet, throughout the history of school desegregation, the Court has often crafted rules allowing state and local choice and, as a consequence, limiting national authority. (28) Federalism principles provide a strong foundation for these school desegregation rules. Although it is far too early to make a definitive assessment, affirmative action in schools may also become another quiet front. (29) For reasons similar to those supporting local control in school desegregation, federalism supports a role of deference for education officials in affirmative action litigation. (30)

After connecting local control and deference to federalism, Part IV next analyzes whether federalism should impact Equal Protection Clause jurisprudence. School desegregation's experience reveals two reasons to limit federalism's impact. First, courts can manipulate federalism to reach a desired outcome. (31) Although local control has counted throughout much of the history of school desegregation, this has not been true at every step. (32) Local control has, in some limited instances, been absent from school desegregation. This occurred not because of federalism itself, but because federalism conflicted with other ideologies. (33) That is, federalism was short-changed so that a different substantive agenda could be advanced. The same will likely be true for deference in affirmative action; deference to educators will likely have less force when it conflicts with other belief systems. (34) That federalism principles will sometimes yield to other policies also means that the idea of deference, while important, is far from determinative.

A second and related lesson from school desegregation is the possibility that the Equal Protection right will have profoundly different meanings for different students. (35) By giving defendants some control ever the definition of the right at play, the federal judiciary is affording students rights dependent on the school to which they seek admittance. (36) This geographical component to Equal Protection rights is contrary to the ideal of freedom from race discrimination. Even more troubling is the possibility that the different meanings will result in weak constitutional rights for some students. (37)

Yet, given the institutional limitations of the courts, as school desegregation demonstrates far too well, (38) some allowance of state and local authority in Equal Protection Clause enforcement is not only inevitable, but necessary. (39) The judiciary's competency in educational matters is limited, and both affirmative action and school desegregation include not only legal principles, but educational ones as well. In short, Grutter ultimately got it right when it deferred to education officials defending their affirmative action policies--but the idea of deference must be closely monitored.

1. GRUTTER AND DEFERENCE

   In Grutter v. Bollinger, the Supreme Court held constitutional the University of Michigan Law School's (law school) race-conscious admission program by a 5-4 vote. (40) The law school justified its preference for African American, Hispanic, and Native American applicants on the need for "educational benefits that flow from a diverse student body." (41) Employing the rhetoric of strict scrutiny, the Supreme Court held that diversity can be a compelling governmental interest in the education setting, and that the law...