UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 31, No. 4SUMMER 2008
Footnote Eleven for the New Millennium: Ecological Perspective Arguments in Support of Compelling Interest
Malik Edwards(fn*)
I. Introduction
In Parents Involved in Community Schools v. Seattle School District No. 1, (fn1) the United States Supreme Court rejected voluntary desegregation plans in Seattle, Washington and Jefferson County, Kentucky that, in pursuit of the integrative ideal, employed the use of race in student assignment. This decision has sent scholars and policy makers who are interested in pursuing race conscious remedies to address systemic racism and the resulting educational performance gap scrambling to understand the limitations imposed by the decision.
Many of these scholars and reformers have been guided by Chief Justice Earl Warren's admonition in Brown v. Board of Education (Brown I) that "it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."(fn2) In Brown I, the United States Supreme Court affirmed educational opportunity as firmly implanted in the lexicon of fundamental rights upon which the American concept of democracy is based.(fn3) A plurality of the Justices in Parents Involved in Community Schools (PICS) seems to retreat from the promise of Brown. This appears to result from the plurality proceeding from an ahistorical, non-contextual understanding of American schooling. The majority opinion informs us that while "remedying the effects of past intentional discrimination is a compelling state interest under the strict scrutiny test," such an interest is not implicated in PICS because "the Seattle schools were never segregated by law nor subject to court-ordered desegregation, and the desegregation order decree to which Jefferson County schools were previously subject has been dissolved."(fn4)
Such a holding seems to overlook the fact that for far too many black and Latino students, the promise of Brown is not met.(fn5) It is not met because many students of color are trapped in racially and economically isolated urban schools. In the late 1960s, while urban America burned, President Johnson appointed a National Advisory Committee on Civil Disorders to determine the factors leading to the riots and ethnic uprisings. The resulting report, known as the Kerner Commission Report, identified the ghettoization of America's cities as a primary cause of the civil unrest. The isolation we see today is a continuation along a path identified by the Kerner Commission Report towards two nations: one White and one Black, separate and unequal.(fn6) While the split may no longer be a binary black and white one, it still continues.
While our cities may not be burning today, the maintenance of a system of ghetto schools provides the tinder from which they may ignite again. Educational reformers face a daunting task in their efforts to address the impact of the educational achievement gap. Reformers cannot address only a single issue and hope to adequately understand or ameliorate educational failure: the problem has too many facets. America's schools continue to be racially, ethnically, and economically segregated, and classrooms that had been integrated are re-segregating at a rapid pace.(fn7)
It is clear that the achievement gap in and of itself is not enough to allow for race conscious reforms. The Court in PICS did not reach the question of the effect, if any, of the school districts plans on addressing achievement gap issues. It was the opinion of the four-person plurality of Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito that the Court need not resolve the parties' dispute over whether racial diversity in schools has a marked impact on test scores because it is clear that the racial classifications at issue are not narrowly tailored to that asserted goal.(fn8)
Somewhat frustrated with the Court in PICS, I looked back to Brown to see what, if anything, could be salvaged. In rereading the Brown decision it occurred to me that it was the acknowledgment of context that allowed the Court to reject the precedent of Plessy.(fn9) In Plessy, the Court found that if "the enforced separation of the two races stamps the colored race with a badge of inferiority," then it is "solely because the colored race chooses to put that construction upon it."(fn10) In Brown, the Court found, at least in the education context, that racial separation "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."(fn11)
This shift is an acknowledgment of the fact that context matters as demonstrated through the research captured in footnote eleven. Footnote eleven is often (dismissively, I would argue) referred to as the social science footnote.(fn12) The footnote in fact cites to psychological,(fn13) sociological,(fn14) historical,(fn15) and economic(fn16) research on the impact and causes of segregation. Almost from the moment the decision was issued, there has been criticism of the courts reliance on the Dr. Kenneth Clark's psychological evidence.(fn17) While the interrogation of Kenneth Clark's research methods is appropriate, it does not mean that psychological evidence is inherently unreliable.
In fact, I posit that psychological evidence is necessary, if not essential, to the understanding and development of remedies and legal strategies to address the pedagogical problems that result from our present system of racial and economically segregated schools. To this end, I will examine the use of developmental theory to inspect and address racial isolation in America's schools.
This Article proceeds in three Parts. Part II considers the historical and social context that led to the ultimate successful strategy in Brown. Although times may have changed, my ultimate argument is that contexts matters; as such, to fully understand Brown, we must understand the strategy behind it and the road that takes us from Plessy to Brown. Part III considers the trends that led to Brown's undoing. While Brown I offers no remedy and Brown II provides that schools should be desegregated "with all deliberate speed,"(fn18) one must understand the societal shifts that occurred, fundamentally changing the context under which education reform operated. Finally, Part IV generates a proposal for a basis for a footnote eleven for the twenty-first century. Specifically, I examine what would be the psychological structure necessary to understand our current context. As we depart from the black-white binary, how do we address group processes?
II. The Basis for Brown: Understanding the Historical and Social Context Leading to Brown v. Board of Education
A. Historical Context: The /Ve-Brown Battle for Educational Reform in the Courts
The plurality in PICS bases their opinion on a conception of "color blind" constitutionalism while also arguing that their belief is consistent with not only Brown, but also with the theory of the case supported by the NAACP Legal Defense Fund.(fn19) This, I would argue, is clearly an ahistorical analysis. A historical analysis is necessary to unpack the PICS Court's claim of color blind constitutionalism and to understand the true meaning of the holding in Brown. To this end, it is necessary to understand the NAACP Legal Defense Fund's strategy and the history behind it.
The victory in Brown was the product of twenty-odd years of litigation for educational equity and an even longer legal struggle for civil rights.(fn20) The NAACP Legal Defense Fund made a logistical decision to "build a string of precedents, one victory leading to and supporting the next."(fn21) While the ultimate aim was to overturn the legacy of Plessy v. Ferguson,(fn22) this was only accomplished by first attacking the inequity inherent in separate but equal.
The strategy to overturn Plessy was constructed by Nathan Mar-gold, an attorney hired by the NAACP during the height of the Great Depression, who believed that the states' cost to sustain an equitable dual system would be too great, thus forcing integration.(fn23) The plan was overseen by Charles Hamilton Houston, the Dean of Howard Law School. During Houston's time as dean at Howard, the school was described as "a living laboratory where civil-rights law was invented by teamwork."(fn24) It almost seems ironic now that attorneys for the NAACP Legal Defense Fund chose to begin with graduate schools in light of the Court's holdings in Grutter(fn25) and PICS, which, in the former, found diversity a compelling interest in the graduate school context (specifically Michigan Law school's admissions program was found to be constitutional), but in the latter, found it was not a compelling interest in the primary and secondary school context. The NAACP Legal Defense Fund made this decision because many states did not offer graduate programs for blacks.(fn26) Law schools were first among graduate schools, "because judges were of course themselves lawyers who would be most inclined to grasp the absurdity of a separate-but-equal law school for Negroes."(fn27)
Although there were state court victories that preceded it,(fn28) the first case to reach the Supreme Court was Missouri ex rel. Gaines v. Canada(fn29) Before Gaines, the state of Missouri...
