UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 31, No. 4SUMMER 2008
Parents Involved and the Meaning of Brown: An Old Debate Renewed
Jonathan L. Entin(fn*)
I. Introduction
The debate over the meaning of Brown v. Board of Education(fn1) in Parents Involved in Community Schools v. Seattle School District No. 1(fn2) exemplifies the long-running disagreement over the meaning of racial discrimination under the Constitution. One approach, reflected in the Parents Involved majority opinion by Chief Justice Roberts and in the concurring opinion by Justice Thomas, endorses colorblindness: the view that race is virtually always and everywhere irrelevant to public policy. Another approach, reflected in the dissenting opinions of Justices Stevens and Breyer, appears to embrace anti-subordination: the view that promoting interracial association is desirable as a matter of principle because it seeks to overcome the stigma that has long attached to people of color in the United States.(fn3)
This Article examines some of the jurisprudential roots of the racial discrimination debate, tracing the issue back to Brown and its immediate aftermath but finding the seeds of the disagreement in the ambiguities of the first Justice Harlan's celebrated dissenting opinion in Plessy v. Ferguson.(fn4) The tensions between the two approaches did not matter in Plessy because segregation was impermissible under either theory, but the two approaches pointed in opposite directions in Parents Involved. Part II offers an overview of the Seattle and Louisville policies that were struck down in Parents Involved. Part III examines the various opinions in Parents Involved to illuminate the basic theoretical differences that divided the Court. Part IV examines the iconic decision in Brown and explores the aftermath of that ruling as lower courts struggled to determine how to remedy unconstitutional school segregation with little guidance from the Supreme Court, which did not grapple with remedial complexities for more than a dozen years after handing down its landmark ruling. Finally, Part V examines the complexities of Justice Harlan's Plessy dissent and how those complexities continue to reverberate in the contemporary debate about racial discrimination.
II. The Student-Assignment Policies in Parents Involved
The Supreme Court rejected voluntary efforts by public school districts in Seattle and Louisville to promote a more heterogeneous student body by taking race into account in assigning pupils to specific schools.(fn5) Although the two cities have very different histories, their past racial practices had received attention from the Supreme Court.(fn6) Perhaps the most obvious difference between the two districts is that the Seattle schools had never been legally segregated,(fn7) whereas the Louisville schools had been for many decades.(fn8) In fact, the Louisville schools were declared unitary only a few years before the district adopted the policy that was struck down in Parents Involved.(fn9)
The details of the Seattle and Louisville policies vary, but both districts sought to keep the racial demography of each school relatively close to the overall pattern within the district as a whole. The Seattle policy applied only to the city's ten high schools. The school board tried to keep the white and nonwhite percentages within 10 points of the overall figures for the district, which was 41% white; the permissible variation was later increased to 15 percentage points.(fn10) The Louisville policy applied to all schools in the Jefferson County school system and sought to keep the African American enrollment in each school between 15 and 50% in a district whose overall enrollment was about 34 percent African American.(fn11)
Significantly, both school boards adopted their policies to promote integration: to have a more racially diverse student body in each affected school. They based their policies on the notion that promoting integration was legally and morally a worthy goal and that considering race for this beneficent purpose was vastly different from using race as a device to promote segregation.(fn12) The plaintiffs disagreed; they argued that race was an illegitimate factor in pupil assignment, no matter why that factor was used and no matter how much other factors affected individual assignments.(fn13)
III. The Parents Involved Opinions
Chief Justice Roberts, joined in full by Justices Scalia, Thomas, and Alito, thought that Parents Involved was an easy case. Resolving the case required the Court to apply the lesson of Brown. Especially in the educational context, the Chief Justice wrote, "history will be heard."(fn14) For him, the teaching of history was clear: considering race in assigning children to public schools "accord[s] differential treatment on the basis of race."(fn15) Such assignments impermissibly "determine admission to public schools on a racial basis."(fn16) Moreover, in Chief Justice Roberts's view, the solution to our nation's racial problems was equally simple: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."(fn17)
Justice Thomas went even further, suggesting that arguments supporting the Seattle and Louisville programs were "reminiscent of [the position] advocated by the segregationists in Brown.,"(fn18) He added that, although "Brown decisively rejected" the arguments of the segregationists, anyone who supports those programs "replicates them to a distressing extent."(fn19) Thomas denied the premise that the programs were about integration at all. He explained that "outside of the context of remediation for past de jure segregation, 'integration' is simply racial balancing" and that "racial imbalance without intentional state action to separate the races does not amount to segregation."(fn20) Moreover, he rejected the notion that promoting integration was legitimate, let alone beneficent. In his words, "[E]very time the government uses racial criteria to 'bring the races together,' someone gets excluded, and the person excluded suffers an injury solely because of his or her race."(fn21)
But history speaks in different voices. Justice Kennedy, although generally sympathetic to opponents of affirmative action in general and of the Seattle and Louisville plans in particular, thought that Chief Justice Roberts had oversimplified the issues. According to Kennedy, "Fifty years of experience since Brown v. Board of Education should teach us that the problem before us defies so easy a solution," as that offered by the Chief Justice: that '"[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.'"(fn22) Kennedy thought that history teaches a more complicated lesson: "The enduring hope is that race should not matter; the reality is that too often it does."(fn23) While the school boards might have had a compelling interest in promoting diversity, he thought that the means they had chosen were not narrowly tailored to achieve that worthy goal.
The dissenters, of course, took a rather different view. Justice Stevens sharply criticized Chief Justice Roberts for oversimplifying what Brown was all about. Brown did not, according to Stevens, condemn all policies that used race to determine where students could go to school: "The Chief Justice fails to note that it was only black children who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools."(fn24) Justice Stevens acerbically concluded that "no Member of the Court that I joined in 1975 [including Roberts's mentor, then-Justice Rehnquist] would have agreed with today's decision."(fn25)
Justice Breyer, who wrote the principal dissent that was joined by Justices Stevens, Souter, and Ginsburg, went even further. According to Justice Breyer, Brown did not reject all governmental consideration of race; rather, it rejected segregation policies that "perpetuated a caste system rooted in the institutions of slavery and 80 years of legalized subordination."(fn26) "The lesson of history," Breyer explained, "is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration."(fn27)
The Parents Involved Court was ultimately divided between two very different notions of the meaning of racial discrimination under the Constitution. According to one view, race is an impermissible factor in governmental decision-making. According to the other, there is no moral equivalence between public policies that seek to bring persons of different races together and those that aim to keep them apart. Adherents to both views claimed to draw their inspiration from the iconic ruling in Brown. A careful look at Brown illustrates how the justices in Parents Involved could draw such different lessons from a case that is now more than half a century old.
IV. The Enigmatic Lesson of Brown
The debate among the Parents Involved justices was about the meaning of Brown, but the unanimous ruling in Brown concealed a similar debate about what the decision actually meant and how to remedy the constitutional evil of segregation. The opinion in Brown contains language that can be read in different ways, and it was indeed read...
