Silencing Chicken Little: Options for School Districts After Parents Involved

• Author: Michelle Renee Shamblin
• Position: Recipient of the 2007-2008 Vinson & Elkins Best Casenote or Comment Award for Excellence in Legal Writing
• Pages: 219-251

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I Introduction

On June 28, 2007, the United States Supreme Court invalidated the student assignment policies of two public school districts that used race classifications to maintain pre-determined percentages of racial groups within each school.¹ Parents Involved in Community Schools v. Seattle School District No. 1 addressed consolidated equal protection challenges to elementary and high school student assignment plans in Seattle, Washington, and Louisville, Kentucky.² Writing for the majority, Chief Justice Roberts reaffirmed that the Fourteenth Amendment requires strict scrutiny review of all government race distinctions³ and found that neither district's plan was narrowly tailored to achieve a compelling governmental interest.⁴ A majority agreed that neither district demonstrated any of the compelling interests previously recognized by the Court, but Chief Justice Roberts wrote only for a plurality when Justice Kennedy acknowledged additional compelling interests asserted by the districts.⁵ Justice Breyer dissented⁶ and warned that the Court's holding set back school integration efforts and threatened the Court's landmark 1954 decision in Brown v. Board of Education.⁷

Indeed, the dissent was not alone in its dismay. "Within an hour of the U.S. Supreme Court's release of [its] . . . decision in June, pundits in the news media and talk show hosts of various political stripes were remarkably quick to bury racial integration plans in K-12 education as a dead animal."⁸ One commentator called the Court's decision "troubling" and predicted that it would hinder efforts to "maintain an integrated student body, prevent resegregation, improve academic performance, and build a morePage 220 equitable and competitive America."⁹ Another observer remarked that the decision "will perpetuate-not alleviate-[the] current separate and unequal American educational system."¹⁰ Other critics made similar statements, one going so far as to announce that "the recent court ruling marks the return to legally sanctioned segregation."¹¹

Regardless of one's opinion of the decision's merits, all can agree that Parents Involved has the potential to significantly affect the strategies and policies of school systems across the nation, including the seventy school districts in Louisiana. Although Parents Involved only addresses the use of race classifications for non-remedial purposes,¹² the decision impacts all Louisiana public schools, whatever their desegregation status. After all, school districts currently subject to court-ordered desegregation are mandated to desegregate with an eye toward emerging from judicial supervision, and these schools must be prepared to transition smoothly to school assignment plans that pass constitutional muster once unitary status¹³ is declared. For those Louisiana districts never under court order or declared unitary, Parents Involved governs the constitutionality of their current assignment plans.

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Despite criticisms that Parents Involved marks the end of integration efforts, this Note will demonstrate that schools need not abandon such goals. After Parents Involved, public school districts may still employ race-neutral and even race-conscious strategies to maintain or achieve integration.¹⁴ Part II sets forth the legal background of racial classifications in the context of public education, surveying the development of the Court's race jurisprudence prior to Parents Involved. Next, Part III details the Parents Involved decision itself, including the facts of the consolidated cases, their procedural histories, and the reasoning and conclusions of the Justices' opinions.¹⁵ In Part IV, the Note identifies how Parents Involved leaves school districts room to employ voluntary integration policies and evaluates the viability of race-conscious and race-neutral plans. Using Louisiana data in particular, the Note will argue that race-neutral, disadvantage-based assignment plans are the best approach and will set forth some general considerations for implementation.

II Supreme court jurisprudence from brown to parents involved

A Desegregation

In 1954, Brown v. Board of Education established the basic unconstitutionality of de jure segregation¹⁶ in public elementary and secondary education.¹⁷ Although Brown "lifted from the Court the burden of its history,"¹⁸ the short opinion provided scant legalPage 222 reasoning for the Court's conclusion and little guidance for desegregation's implementation; one year later, in Brown II, the Court could only require that desegregation proceed with "all deliberate speed."¹⁹ As one commentator remarked:

Brown thus gave little guidance to future racial debate. Its brevity was a mask for ambiguity. If segregated schools were not constitutional, what kinds of schools were? Was the evil segregation itself or merely the state's imposition of it? Was a color-blind society or the betterment of an oppressed race the Court's chief objective? On these and other questions, Brown (and later Brown II) gave no clear answers. It left future problems to the future, content to take one memorable step.²⁰Over the next several decades, the Court endeavored to define the constitutional contours of desegregation that both Brown decisions left unanswered. Thirteen years after Brown II, the Court addressed school desegregation again in Green v. County School Board.²¹ Green removed the intimidating burden on blacks to integrate under "freedom of choice"²² plans and instead placed an affirmative duty upon school districts to desegregate-"to come forward with a plan that promises realistically to work, and promises realistically to work now."²³ Increasingly aggressive desegregation remedies throughout the late 1960s and early 1970s required school systems to achieve teacher racial ratios in eachPage 223 school that reflected the entire district's ratio,²⁴ "terminate dual school systems at once . . . operat[ing] now and hereafter only unitary schools,"²⁵ and utilize involuntary busing to combat racially segregated housing that skewed assignment plans.²⁶ The Court further expanded its desegregation mandate from the South to schools in the Northern and Western United States that intentionally maintained policies creating segregation, also noting that Hispanics as well as African-Americans were entitled to a desegregated education.²⁷

Twenty years after Brown I, however, the Court began establishing outer boundaries for the desegregation mandate it had so emphatically pursued against often obstinate Southern school systems. In Milliken v. Bradley, the Court prohibited busing of suburban students to desegregate inner city schools, absent a finding of a constitutional violation by the suburban district.²⁸Then, in the early 1990s, the Court held that a district declared unitary could return to local control and was no longer obligated to affirmatively maintain desegregation.²⁹ Moreover, districts that had achieved some of the requirements for unitary status could be partially released from court-ordered desegregation,³⁰ and the Court announced that the primary goal of school desegregation cases is a school system's quick return to local control.³¹

B Affirmative Action

Despite these later limitations, cases such as Green and Swann v. Charlotte-Mecklenberg Board of Education declared and defined school boards' duty to take "affirmative" action to eradicate all "vestiges of state-imposed segregation."³² If schoolPage 224 districts failed to do so, the Court's desegregation cases established that intentional state discrimination on the basis of race justified some use of race-conscious, court-ordered remedies.³³ However, the Court's race jurisprudence shifted in the 1970s to address educational institutions' voluntary use of race classifications and preferences absent findings of past purposeful discrimination. The Court first addressed this form of "affirmative action" in Regents of the University of California v. Bakke.³⁴

1. Bakke

In Bakke, a white male applicant, denied admission to medical school in favor of less qualified applicants, challenged the university's admission program that separately evaluated minority applicants for a reserved number of seats.³⁵ The Court's judgment ultimately invalidated the medical school's admissions program and ordered Allen Bakke's admission, but this result did not invalidate affirmative action.

In essence, the affirmative action debate culminating in Bakke resulted from the questions unanswered by Brown. "To the university, Brown stood for minority educational opportunity . . .

[t]o others, Brown stood for the ideal of color blindness . . . Bakke attempted, at least, to bridge the unbridgeable: the disparate legacies of Brown."³⁶ The "disparate legacies of Brown" are apparent in the conflicting views of the Bakke dissenters and Justice Powell, whose lone substantive opinion prevailed simply because four Justices concurred in the judgment.³⁷ For Powell, thePage 225 Fourteenth Amendment enunciated a personal right to equality for all persons, despite its historical origin...