UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 31, No. 4SUMMER 2008
Solving the Parents Involved Paradox
Lino A. Graglia(fn*)
The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District No. 1(fn1) (Parents Involved) presents the seeming paradox that the Constitution can on one day require a school district to take drastic measures, including busing students across a giant school district to increase racial integration in schools, and then prohibit school districts from taking even the mildest measures, such as using race as a tie-breaker in making student assignments, on the next. How, a rational observer must wonder, can this be possible? The answer is that, as usual in the making of "constitutional law," the Constitution has nothing to do with it. It is the entirely logical, though paradoxical, result of a long-established irrational and deceptive system of lawmaking by the Supreme Court on the subject of race and the schools.(fn2) Because the requirement of integration was falsely and illogically justified as only a remedy for segregation, opponents of compulsory integration can find the requirement inapplicable in any given case by simply pointing out that there is no segregation to be remedied, as they did in Parents Involved.
I. The Brown Decision
The explanation begins with the Supreme Court's 1954 decision in Brown v. Board of Education prohibiting school racial segregation and the assignment of students to different schools on the basis of race.(fn3) It soon became clear that Brown actually prohibited all segregation and official racial discrimination, including segregation of beaches, golf courses, and buses, even though they have nothing to do with education.(fn4) The Court could not and did not try to enforce Brown as to school segregation,(fn5) however, because the states of the Deep South had the option of making the holding a nullity or worse by simply closing their public schools.(fn6) Segregation came to a sudden and complete end ten years later when Congress enacted the 1964 Civil Rights Act authorizing the Department of Justice to sue to enforce Brown and providing for the cut-off of federal funds to school districts that failed to end segregation.(fn7) Congress in effect ratified and made effective its understanding, shared by all, of the principle of Brown: a prohibition of all official racial discrimination.
School racial segregation quickly came to an end as a result of the 1964 Act, but racial separation did not. The residential racial separation that existed in all urban areas with large black populations meant that race-neutral neighborhood assignment would result in many predominantly black schools. Therefore, what was in fact an historic achievement soon came to be seen by integration activists as a disappointment.(fn8) The effect of ending segregation in heavily black school districts (such as those in Washington, D.C., St. Louis, Atlanta, and New Orleans) was not only a failure to end racial separation, but sometimes even to increase it as whites quickly fled the public school systems.(fn9) It became clear that compliance with Brown would not result in the Utopia of racially "balanced" schools (i.e., schools with the district's black student population spread out more or less evenly). Therefore, the activists concluded that it was time to take drastic action: to move from prohibiting segregation to requiring increased integration, even though this meant requiring rather than prohibiting race discrimination in apparent violation of Brown.
II. The De Jure-De Facto Distinction
In 1968, the Supreme Court, led as usual by Justice Brennan, decided to make this move in Green v. County School Board.(fn10) Green, not Brown, is the source of our current constitutional law of race discrimination.(fn11) Although the Court decided to make the move from prohibiting segregation to requiring integration (one of the most daring, ambitious, and ill-conceived in its history), it could not, for many reasons, make it openly. The Court, therefore, denied that it was imposing a requirement of integration for its own sake, applicable to school racial separation everywhere in the nation.(fn12) The Constitution, the Court has repeatedly reassured the North and West, is not offended by a school district with all-black and all-white schools.(fn13) It insisted that the requirement was something very different: merely "desegregation," the undoing or "remedying" of the segregation prohibited by Brown.(fn14)
Thus was born out of necessity the de jure-de facto distinction(fn15) that is the essential basis of our current constitutional law of race discrimination, and to understanding Parents Involved. The distinction, however, is both dishonest in that the supposed "desegregation" requirement has been limited to undoing de jure segregation, and senseless in that the cause of existing school racial separation does not seem related to the benefits expected from compulsory racial mixing.
A. Advantages of De Jure-De Facto
Creating the de jure-de facto distinction and insisting that the requirement was not integration as such, but only desegregation, had many advantages for the Court. First, this distinction made it appear that the requirement would necessarily be confined to the South, where there had been dejure segregation, not to the nation as a whole. It also seemed to mean that the requirement would come to an end once its limited purpose of undoing dejure segregation had been achieved. A simple requirement of integration would have applied, of course, to the racially separate schools of the North and West as well as to those of the South; it would have required racial balance, not merely undoing the effects of segregation; and it would have had no time limit. That, however, was hardly politically feasible. The North and West would have joined the South in a nationally-unified protest that would have compelled Congress and the president to intervene.(fn16) Instead, it seemed the North and West had nothing to fear from this requirement of desegregation, and the South, in the opinion of the North and West at the time, no doubt deserved whatever the good justices were proposing to do to it.
Second, calling the requirement "desegregation" excused the Court from the impossible task of justifying compulsory integration in terms of expected benefits. The Court's answer to the question as to why it was requiring integration was that there was no such requirement; the only requirement was desegregation in compliance...
