Voluntary Desegregation Measures Aimed at Achieving a Diverse Student Body Lose Ground in Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998)

• Publication year: 2021

79 Nebraska L. Rev. 485. Voluntary Desegregation Measures Aimed at Achieving a Diverse Student Body Lose Ground in Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998)

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Note* Karey A. Vering

Voluntary Desegregation Measures Aimed at Achieving a Diverse Student Body Lose Ground in Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998)

TABLE OF CONTENTS

I. Introduction................................... 486
II. Wessmann v. Gittens........................... 487
A. Background.................................. 487
1. Affirmative Duties to Desegregate........ 487
2. Constitutional Analysis of Voluntary
Desegregation Measures................... 489
3. Strict Scrutiny.......................... 489
4. Compelling Governmental Interest:
Diversity?............................... 490
5. Narrow Tailoring......................... 492
B. Facts....................................... 493
C. First Circuit Court of Appeals Opinion...... 496
1. Strict Scrutiny.......................... 496
2. Compelling Governmental Interests........ 496
3. Diversity................................ 496
4. Remedying Past Discrimination............ 499
5. Narrow Tailoring......................... 502
6. Circuit Judge Boudin's Concurrence....... 504
7. Circuit Judge Lipez's Dissent............ 504
III. Analysis: The Trend Away From
Voluntary Affirmative Measures to
Desegregate Public Schools................... 505

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A. Wessmann's Impact on Voluntary Affirmative
Desegregation Measures...................... 505
B. The Future of Affirmative
Desegregation Measures...................... 511
IV. Conclusion.................................... 515

I. INTRODUCTION

Public school desegregation, initiated over fifty years ago, has had a profound impact on American schools and students. Although de jure segregation is largely a thing of the past, a problem remains with de facto segregation in public schools. Achievement gaps and socioeconomic differences between students of different racial and ethnic backgrounds may indicate that eliminating de jure segregation did not eradicate the overall problem of segregation. These concerns, coupled with a desire to achieve racial and ethnic diversity in public schools, have compelled many school districts to enact measures intended to help minority students by controlling the ratio of minority students in schools through admissions and transfer policies. Courts have struck down many of these policies, however, as violations of the Fourteenth Amendment's Equal Protection clause. According to these courts, the goal of creating diversity alone does not provide the required compelling interest to support the use of race as a determinative factor in accepting or rejecting a student.

Wessmann v. Gittens(fn1) demonstrates the current judicial trend away from affirmative measures intended to racially and ethnically integrate public elementary and secondary schools. Wessmann found that the Boston Latin School's (`BLS') admissions policy offended the Fourteenth Amendment's Equal Protection guarantee by using race as a determining factor in the admission standards for half of each entering class.(fn2) Despite a documented achievement gap between students of different races, the Wessmann court found that affirmative measures to ensure diversity among the student body and remedy vestiges of past discrimination did not justify the BLS admissions policy. Additionally, a series of recent federal court decisions appear to greatly limit and diminish the movement toward voluntary public school desegregation that started with Brown v. Board of Education.(fn3)

The Supreme Court applies strict scrutiny when reviewing federal, state, or local affirmative action programs by requiring race-conscious policies to further a compelling governmental interest and be nar

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rowly tailored to serve that interest.(fn4) Though the Court has issued no majority decision on whether diversity qualifies as a compelling governmental interest, it does impose a high threshold evidentiary requirement to prove the necessity of race-conscious school policies when the policies are in place to remedy vestiges of past discrimination.

In the face of courts' rulings in favor of white plaintiffs claiming equal protection violations, public schools may have to relinquish attempts to affirmatively desegregate and diversify their schools. Although a more intermediate level of judicial scrutiny could be the answer, `diversity' can be defined too many ways to be narrowly tailored without finding specific de jure segregation. School boards searching for solutions to achievement gap and de facto resegregation problems, may in the future have to use student economic status rather than race as an element in admissions and transfer policy decisions.

Section II.A of this Note provides the legal background of desegregation law, affirmative action law, and the strict scrutiny standard. Sections II.B and II.C summarize the facts of Wessmann v. Gittensand analyze the First Circuit Court of Appeals opinion. Section III.A outlines and analyzes the impact of recent court decisions that have ruled primarily against voluntary affirmative measures to desegregate public schools, while section III.B examines the future of affirmative measures to desegregate and the possible alternatives for public schools. Section IV concludes the Note.

II. WESSMANN V. GITTENS

A. Background

1.Affirmative Duties to Desegregate

The `separate but equal' doctrine mentioned by the Supreme Court in Plessy v. Ferguson(fn5) stated that when different races are provided with substantially equal facilities, equality of treatment is accorded even though the facilities are separate. Brown v. Board of Education (Brown I)(fn6) overruled this doctrine in the public school context, concluding that

in the field of public education the doctrine of `separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated . . . are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.(fn7)

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Brown v. Board of Education (Brown II)(fn8) required school districts found to be intentionally segregated to desegregate by admitting all students on a `racially nondiscriminatory basis with all deliberate speed.'(fn9) Brown II required every school board operating a segregated school to `effectuate a transition to a racially nondiscriminatory school system.'(fn10)

The Supreme Court strengthened this mandate with its decision in Green v. County School Board.(fn11) The New Kent County School Board claimed to have discharged its obligation to desegregate by adopting a plan in which students could freely choose which school in the district to attend.(fn12) The Court found, however, that this plan `[ignored] the thrust of Brown II,' which was intended as `a call for the dismantling of well-entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which would require time and flexibility for a successful resolution.'(fn13) The free transfer system implemented by New Kent County's school board was not enough because Brown II charged school systems `with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.'(fn14)

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Swann v. Charlotte-Mecklenburg Board of Education(fn15) dealt with a school district's difficulties in implementing a court-ordered remedy fashioned to desegregate the school district. The Court stated that `problems encountered by the district courts and courts of appeals make plain that we should now try to amplify guidelines, however incomplete and imperfect, for the assistance of school authorities and courts.'(fn16) Citing Green, the Court found that `[i]f school authorities fail in their affirmative obligations under [Green], judicial authority may be invoked. Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable reme-dies.'(fn17) Swann noted that school authorities have the autonomy to formulate and implement educational policies and could decide, for example, that classrooms with a prescribed ratio of white to black students reflecting the district-wide proportion would help prepare

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students to live in a pluralistic society.(fn18) Implementing a policy like this `is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court.'(fn19)

The Swann Court, attempting to more specifically define the responsibilities of school authorities in desegregating schools, dealt with student assignment and racial quotas. Noting the focused concern in eliminating the inherent discrimination in dual school systems, the Court stated that they were not attempting to deal with the `myriad factors of human existence which can cause discrimination in a multitude of ways on racial, religious, or ethnic grounds.'(fn20) Instead, the elimination of racial discrimination in public schools `should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities.'(fn21) Though the Court approved of the idea of racial quotas as a way to eliminate racial segregation, it found that `[t]he constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.'(fn22) As an interim corrective measure, the Swann Court ordered a remedial altering of school zones and busing of students to hasten desegregation.(fn23)...